Blue Cross and Blue Shield United of Wisconsin (hereinafter referred to as the
Company) and
Local 787, OPEIU, AFL-CIO, CLC (hereinafter referred to as the Union) requested that the
Wisconsin Employment Relations Commission designate Dan Nielsen, an arbitrator on its
staff,
to serve as chair of an arbitration board which would hear and decide a dispute over the
termination of Vernita Dailey's employment with the Company. The undersigned was so
designated. A hearing was held on February 13, 1995 in Milwaukee, Wisconsin, at which
time
the parties were afforded full opportunity to present such testimony, exhibits, other evidence
and
arguments as were relevant. The parties submitted post-hearing briefs and the record was
closed
on April 19, 1995.

Now, having considered the evidence, the arguments of the parties, the relevant
provisions
of the contract and the record as a whole, the majority of the Arbitration Board makes the
following Award.

I. Issue

The parties stipulated that the arbitration board should frame the issue. The issues
may be
fairly stated as follows:

1. Did the Company violate the collective bargaining
agreement by not granting the
grievant a leave of absence pursuant to Section 7.1 of the contract?

2. Was the grievant constructively
discharged?

3. If the answer to question 1 and/or 2 is "yes", what is the
appropriate remedy?

II. Relevant Contract Language

ARTICLE VII

Leave of Absence

7.1 A leave of absence up to sixty (60) calendar days will be
granted for confirmed
personal illness or disability. A leave of absence up to thirty (30) calendar days will be
granted
for compelling personal reason. A leave of absence of up to seven (7) calendar days will be
granted for marriage of an employee or death in the immediate family. A leave of absence
of up
to fourteen (14) calendar days will be granted for the employee to care for a spouse, child or
parent with a serious health condition. A father shall be entitled to 30 workdays for family
leave,
as required by Wisconsin law, in connection with the birth of the employee's child or
placement
with the employee of a child for adoption. A similar family leave opportunity of up
to 30
workdays, as required by Wisconsin law, will be made available to female employees with
whom
a child is placed for adoption. A leave of absence up to thirty (30) calendar days will be
granted
for reasons other than specified above if such absence would not interfere with the efficient
operation of the employee's department. In the event of a request for a leave due to
compelling
personal reasons, the parties will use their best efforts to keep the same confidential.

. . .

ARTICLE VIII

Seniority

. . .

8.12 An employee shall lose his seniority and be considered
terminated for any of the
following reasons:

(a) Voluntary termination

(b) Retirement

(c) Discharge for just cause

. . .

III. Background

The grievant, Vernita Dailey, was employed by the Company for 10 years, until June
of 1993.
For seven of those years she was a Union steward, and in 1993 she served as one of seven
members of the Union's bargaining team. In her regular job she was a reconciler, making
sure
that customer claims were accurately paid. She worked a Monday-Thursday work week.

In April of 1993, the grievant was called by her sister, who told her that her father
was
seriously ill with kidney failure. Her father and two of her three sisters lived in Cleveland,
Ohio.
The grievant immediately took four days of vacation and traveled to Cleveland to be with her
father. Her father survived the crisis, but his family members realized that he would be
unable
to go back to operating his bakery, and that he would have to retire and find someone to
either
run or buy the business. Her father did not initially accept this.

When the grievant returned from Cleveland, she and Chief Steward Vicky Botros
inquired
about converting the vacation time to leave under Wisconsin's Family and Medical Leave
Act.
Given her father's health difficulties, the grievant wanted to preserve as much leave time as
possible. The Company agreed to review the question. Without the four days, the grievant
still
had between ten and twelve vacation days available to her.

The grievant was involved in reconciling a very large account for the Teamsters
Union, which
had canceled its coverage with the Company. The Company needed to determine what was
owed
on the account before it could be closed, and had promised to have it reconciled by May 1st.
When it became apparent that it would not be finished in time, this deadline was extended to
July
1st. Since the grievant was tied up with negotiations, the Company assigned two
subprocessors
(1) who were being trained as reconcilers to
work with her on the account. She remained the lead
worker on the Teamsters account. Ultimately the work on this account was not finished until
early
August.

After the crisis in April, the grievant's father returned home, where he was cared for
by his
other daughters and a nursing service. The grievant kept in regular contact with her father
and
her sisters regarding his condition. While it was clear to the children that he could not
return to
work, he continued to resist selling the business and retiring. On Sunday, June 6th, the
grievant's
sister called her and told her that he had finally agreed to dispose of the business. She asked
the
grievant to come to Cleveland immediately to make arrangements for both the sale and her
father's
long-term care. Her father wanted the grievant, as the eldest daughter, to be involved.

The grievant contacted her supervisor, Shirley Ravnik, via voice mail on Friday,
June 11th
to request a thirty day leave of absence. On Monday the 14th, they spoke personally and the
grievant explained the situation. During the conversation, the grievant told Ravnik that she
would
resign if she could not receive the leave. Ravnik said she did not know whether she could
approve
the leave and would have to check. Later that day she told the grievant by telephone that the
request was denied. The grievant pointed out that she was entitled to thirty days of leave for
compelling personal reasons, and Ravnik said the manager had denied the request. The
grievant
was in a bargaining session at the time of this call, and went to Botros. Botros said she was
sure
that the supervisor simply did not understand the contract's provisions for leaves based on
compelling personal reasons. She and the grievant called aside Claudia Banks, the
Company's
Supervisor of Labor Relations, and explained the situation to her. Banks called the grievant
the
next day and told her the leave request did not meet the "compelling personal reasons"
criterion
in the contract and that the department could not afford to have her absent at that time.

The grievant was distressed by the denial of her leave request. She made it clear that
she
intended to go to Cleveland to see to her father's affairs, and asked if she would receive
unemployment compensation if she quit. Banks told her the Company would not pay her
unemployment compensation if she quit. The grievant was also told that she needed to
submit
something in writing if she was going to leave her employment. On Tuesday morning, she
submitted a note:

On 6/11/93 I requested a 30 day leave of absence for compelling
personal reasons under
Article 7.1. On 6/14 the Company denied request for leave ("due to business needs"),
thereby
forcing me to give my 1 week notice for resignation. This resignation is a direct result of
the
denial of my request for leave of absence.

The grievant worked the remainder of the day on Tuesday, and on Wednesday the 16th
she,
Botros, Ravnik and enrollment services manager Jan Stemplewski met to review her file.
Included in the file were notes regarding her request from Ravnik and Stemplewski,
indicating that
the request was for thirty days or more to move or sell the business. The grievant corrected
this
notation, to reflect that she would either have to relocate herself, or sell the business to start
another business. During the meeting, they discussed some of the difficulties of going into
small
business, and the grievant said she would probably start a business in Milwaukee rather than
Cleveland. The grievant commented that she had been putting the trip off, but that
negotiations
seemed to be going well and that she could not delay going to Cleveland any longer. The
supervisors informed the grievant during this meeting that the four days of vacation she had
taken
in April had been converted to leave of absence under Wisconsin law, and that her vacation
balance had been recredited with the time.

On Thursday the 17th, the grievant was in negotiations. She did not return to work at
the
Company after that time. On Friday the 18th, a grievance was filed protesting the failure to
grant
the leave of absence:

On 6-11-93 Vernita requested a 30 day leave of absence due to
compelling personal reason.
On 6-14 and 6-15-93 the line department and Claudia Banks denied the leave, thereby forcing
Vernita to terminate her employment. The Union contends the Company clearly violated the
CBA
and we are requesting that the employee be reinstated and made whole and be granted the 30
day
leave of absence.

The grievant went to Cleveland and spent about ten days there. During this trip she
and her
sisters solidified the arrangements for her father's continuing dialysis treatment. She also
accompanied her father as he and his lawyer took care of the sale of his business. She
returned
to Milwaukee sometime prior to July 1st.

Additional facts, as necessary, will be set forth below.

IV. Arguments of the Parties

A. The Union's Brief

The Union takes the position that the Company violated the contract by refusing the
grievant's
request for a leave of absence, and thereby compelled her to choose between her father and
her
job. Thus the "resignation" she submitted was forced, and she should be reinstated and
made
whole for her losses.

The Company refused to grant the grievant's leave request, despite the fact that she
told them
of her father's serious illness, and that the need for personal attention to disposing of his
business
should have been self-evident. The contract does not give the Company unbridled discretion
to
deny leave requests. Section 7.1 of the contract uses the phrase "a leave of absence . . . will
be
granted" in describing the entitlement to leave for compelling personal reasons and other
reasons.
This is a guarantee to the employee that the benefit will be available when needed. While
there
is some ambiguity in determining what constitutes a "compelling personal reason", the record
is
clear that no employee who ever requested such a leave under similar circumstances was
denied.
The only examples raised by the Company were one unnamed person who wanted to take a
three
month trip to Japan, and another who wanted to use leave to attend school. These are
obviously
less compelling than the serious family illness the grievant was coping with. The Company's
attempt to limit compelling personal reasons to caring for a sick family member is
nonsensical,
the Union submits, since the leave provision already makes specific allowances for such a
leave
in a different sentence.

Even if there were no compelling personal reasons for a leave of absence, employees
are
entitled to thirty day leaves for other reasons, so long as it does not impair the efficient
operation
of the department. The evidence shows that the primary work of the grievant, the Teamsters
account, was finished in May. The department had functioned smoothly during her prior
absences
for bargaining. There was absolutely no evidence that the grievant's absence would have in
any
way hampered the operations of her department, outside of the unsupported, subjective
opinion
of Jan Stemplewski.

The denial of the leave, together with the uniform policy of denying vacation
requests, led the
grievant to submit the purported "resignation". In fact, the Company asked for something in
writing from her, and she provided the letter. However, she simultaneously filed a
grievance.
It is obvious that there was no intent to resign her employment. The resignation was the
natural
and foreseeable consequence of the improper leave denial. It is nothing more than a
discharge in
a different guise.

The Union notes that the grievant was very active in bargaining and enforcing the
contract.
Her urgent need for time off came at a point of tense and adversarial negotiations over the
contract. Given the sequence of events, and the greater sophistication of anti-union
employers in
the 1990's, the Union submits that it is a logical inference that the constructive discharge of
the
grievant was a direct result of her protected concerted activity.

For all of these reasons, the Union urges the Arbitration Board to uphold the
grievance,
reinstate the grievant, and make her whole for her losses.

B. The Company's Brief

The Company takes the position that it properly denied the requested leave of
absence, and
that the grievant's resignation was a matter of personal choice rather than anything forced on
her
by the Company.

The evidence is unrefuted that the grievant's absence would have interfered with the
efficient
operation of the department. Thus if she had any contractual entitlement to a leave of
absence,
it must be based on compelling personal reasons. In April of 1993, the grievant requested a
leave
of absence to travel to Cleveland and join her father, whose kidneys had failed and who was
seriously ill. This request obviously meets the definition of "compelling personal reasons"
and
was granted. In contrast, her request for a leave in June came after her father had stabilized
and
he had left the hospital. Its purpose was to advise him on the sale of his business, decisions
that
he ultimately made on his own. It is apparent that her role was solely as moral support.
Any
argument that there was some compelling reason for her trip is undercut by the fact that she
put
it off so she could participate in bargaining, and did not travel to Cleveland until a week and
a half
after her sister called and told her to come. Further, she made no effort to use accumulated
vacation time for this trip, and after her ten days in Cleveland, she made no effort to rescind
her
resignation or inquire about her job. Nothing in this sequence suggests that the grievant was
under
some great personal compulsion to get to Cleveland. Instead, the evidence shows that the
grievant
went to Cleveland because her father wanted her to come, she was the oldest child, and she
felt
she had to obey his wishes and do her part to help out the family. These may be good
reasons
for wanting to go, but they do not in any way fit into the definition of "compelling personal
reasons".

Assuming for the sake of argument that the grievant had a compelling personal reason
for her
trip, the Company argues that she was not justified in terminating her employment as a
response
to the Company's refusal to grant her request. Clearly, the grievant had time before she
needed
to travel to Cleveland. She made no effort to discover whether the leave would be covered
by the
Family and Medical Leave Act, and tried to manipulate the situation to secure unemployment
benefits while seeking an even bigger payoff through arbitration. The grievant should not be
rewarded for such conduct.

The Company argues that a reasonable person in the grievant's situation would not
have
resigned her employment simply because her father wanted her to come to Cleveland. Even
if she
felt a purely personal compulsion to go, she should have explored alternatives such as using
vacation or making a shorter trip to Cleveland on her three off days. By resigning from her
job,
the grievant acted unreasonably, and thus the Company cannot be charged with a constructive
discharge.

Since the grievant's request for a leave was not justified by compelling personal
reasons, and
since the Company cannot be held responsible for her decision to resign rather than seek
some
other reasonable alternative, the grievance should be denied.

V. Discussion

The grievant left employment because she felt she needed to go to Cleveland and the
Company
denied her request for leave. The primary issue in this case is whether the Company had the
right
to refuse a leave under these circumstances. There are two portions of Article VII that
have been
cited as bearing on this question. Section 7.1 provides that employees will be granted leave
of
up to 30 days for compelling personal reasons. Later in that same section, the contract
provides
for leaves of up to 30 days for other reasons, if the leave does not "interfere with the
efficient
operation of the employee's department."

A. The Applicable Leave Provision

The Arbitration Board views this dispute as being controlled by the "compelling
personal
reason" clause of Article VII. This is the provision under which the leave was actually
requested,
analyzed and denied. The grievant did not contest the Company's claim that her absence in
June
of 1993 would impair the efficient operation of the department until well into the grievance
procedure, and even at the arbitration hearing the Union's case was focused on showing the
existence of compelling personal reasons, rather than the absence of legitimate business
considerations for denying the leave. Thus this case, as it developed in actuality and in
litigation,
has turned on whether the Company erred in deciding that the request was not supported by
compelling personal reasons.

The Board's conclusion that the leave request must rise or fall on the presence of
compelling
personal reasons is buttressed by the fact that the preponderance of the evidence establishes
the
existence of legitimate business reasons for the Company to deny a discretionary leave at that
time. At the time of the leave request, the Company had two vacancies in the reconcilers'
job and
three inexperienced reconcilers, leaving four experienced reconcilers including the grievant.
Stemplewski provided unrebutted testimony that the department was working a great deal of
overtime in May and June to keep up with the workload. The grievant was the lead worker
on
reconciling the Teamsters' account, a very large project which had originally been promised
on
a May 1st deadline, and had been extended to July 1st. While the grievant testified that, to
her
knowledge, the Teamsters' account was finished by the end of May, she was spending a
great deal
of time in negotiations during this time period, and her knowledge of the precise standing of
that
account may have been incomplete. Stemplewski testified that the account was not finished
until
August 1st, and was only accomplished then because she assigned two experienced
reconcilers to
replace the grievant after her resignation. The Company's position on the size of the
workload
is supported by the grievant's own testimony, in which she acknowledged that she did not
make
any attempt to use accumulated vacation time to cover her June absence because the
Company had
previously announced that vacation requests would not be approved in June due to the
department's anticipated workload. The fact that the Company had taken steps to restrict the
right
of all employees to take vacation time in June strongly indicates that there was a legitimate
concern with allowing time off, and that this concern was not directed at the grievant
personally
or related to her activities on behalf of the Union.

B. Compelling Personal Reasons - The Standard for Review

The grievant requested thirty days' leave for what she characterized as compelling
personal
reasons. The contract does not define what constitutes a "compelling personal reason", and
the
term is inherently ambiguous. Despite the Company's claim that it refers only to a need to
provide care for an ill relative, the language cannot be read so narrowly. The words used
are
broader and more general in nature than the Company suggests. Moreover, the contract
already
provides leave in a different portion of 7.1 for care-givers, and the Company's interpretation
would render this language surplusage. Thus the reasons for a leave under this provision go
beyond family health problems. Just as clearly, the sufficiency of a reason will vary from
employee to employee, depending upon the employee's personal situation. A "compelling
personal reason", by definition, must take into consideration the impact of the situation on
the
individual worker. By way of illustration, personal circumstances may make problems with
a
child compelling for a single parent, while they would not be so serious for an employee in a
traditional two parent family with a non-working spouse. On the other hand, the term cannot
be
taken to mean that the Company has no ability to evaluate the reasons so long as a particular
employee feels strongly. The contract does not grant carte blanche to employees, and the
right
to be absent from work regardless of the Company's needs cannot spring from purely
subjective
individual beliefs. The Board takes the contract provision as insuring an unpaid leave of
absence
where the situation would cause a reasonable person of normal sensibilities in that
employee's
position to conclude that a leave of absence is a necessity.

C. Application of the Standard to this Case

Although the Union's brief suggests that the grievant's leave request was directly tied
to her
father's health problems, the facts do not support this interpretation. Her father's medical
crisis
had passed, he was back at home and was receiving treatment for his condition. The
grievant's
leave request was triggered by her sisters and her father asking her to come to Cleveland to
help
make arrangements for disposing of his bakery. Her father was competent to arrange his
own
affairs, and two of her three sisters lived in Cleveland. The need for the grievant's personal
involvement was premised upon her status as the eldest child.

The Arbitration Board respects the grievant's sincere desire to do her fair share in a
family
effort, and recognizes that her trip to Cleveland was not intended as some sort of frolic or
vacation. However, the Board cannot find that this trip reasonably fits into the definition of
a
"compelling personal reason" which allows a leave of absence as a matter of right without
regard
to the Company's interests. By her own testimony, the grievant's activities in Cleveland
primarily
consisted of discussing matters with her sisters and accompanying her father as he sorted out
his
own business affairs. One critical element in determining whether a leave is a necessity is
whether
there are realistic alternatives that would still adequately address the situation. Certainly the
grievant's physical presence in Cleveland was helpful, and may well have provided comfort
to her
family and to her, but it is not at all clear to the Board why the bulk of the grievant's
substantive
contribution could not have been made over the telephone and by using her three day
weekends
for one or more trips to Cleveland. (2)

The Board does not suggest that a leave of absence is only
justified when all other options are completely ruled out, but the leave must be more than
just the
most convenient way to deal with a problem.

It is difficult to articulate precisely where the line is drawn between a legitimate
reason for
a leave and a reason which rises to the level of "compelling". The grievant's desire to play
the
role expected of the eldest child by her father and sisters is understandable, and the Board
can
appreciate the pressures on an out-of-town child to be visibly involved when children must
take
an active part in a parent's affairs. However, the trip to Cleveland to help with her father's
decision to sell his business was not undertaken on an urgent basis and has not been shown to
have
been the only realistic option open to the grievant. On the specific facts in this record, the
Board
concludes that the grievant's request for a leave of absence was not predicated on compelling
personal reasons, and that the Company did not violate the contract when it refused to
approve
the request.

D. Constructive Discharge

The grievant's resignation from the Company was clearly brought about by the denial
of her
leave request, and the Company had actual knowledge that she would probably resign if the
request was denied. Inasmuch as the Company was within its rights in denying the request,
the
Board cannot conclude that the denial constitutes a constructive discharge which may be
remedied
in this proceeding. While there are exceptions to the "obey now - grieve later" doctrine in
labor
relations, the conclusion that her leave request was not based on compelling personal reasons
necessarily leads to the conclusion that a reasonable person in the grievant's position would
not
normally have reacted to the leave denial with a resignation.

On the basis of the foregoing, and the record as a whole, the Board makes the
following

AWARD

1. The Company did not violate the collective bargaining
agreement by not granting the
grievant a leave of absence pursuant to Section 7.1 of the contract.

2. The grievant was not constructively
discharged.

3. The grievance is denied.

Signed this 19th day of July, 1995 at Racine, Wisconsin:

By Daniel Nielsen /s/
Daniel Nielsen, Neutral Chair

PARTY ARBITRATORS' SIGNATURE PAGE

I dissent from the Neutral Chair's decision:

Signed this 21st day of November, 1995 at Milwaukee, Wisconsin:

By /s/ Michael C. Walker
Michael C.
Walker, Union Member

I concur in the Neutral Chair's decision:

Signed this 8th day September, 1995 at Milwaukee, Wisconsin:

By /s/ Gina Wagner
Gina Wagner,
Company Member

1. A subprocessor handles straightforward changes
in account data, such as changes in
addresses or dependents. It is a job with less responsibility than a reconciler, and it
requires less expertise.

2. Another possible option would have been a leave
of less than 30 days. The Company
offered evidence that this option had been offered to the grievant, and that she had rejected
it. The evidence of this offer, however, was in the form of hearsay, and the grievant
testified that no such offer had been discussed. The Board has therefore attached no
weight to this offer in arriving at its conclusion.